Japanese Anime And Manga Fans Worried About How TPP Will Kill Important Fan Fiction

from the don't-mess-with-dojinshi dept

Over a decade ago, we first wrote about how manga and anime in Japan was thriving in part due to the rise of fan fiction (even for-profit fan fiction) and the fact that the lawyers for official publications didn't try to shut it down. Instead, they realized that such fan fiction was often quite good for the original, official versions of the products. Over the years since then, we've had a bunch of similar stories. Rather than trying to hit fans with copyright infringement claims, publishers were willing to embrace those fans and it helped everyone in the industry.

However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening.

Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations.

Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it.

The more cynical among you might point to the fact that the dojinshi market's proof that copyright maximalism can be counterproductive, and allowing free flowing "infringement" among fans creating derivative works, so bothers some people that they feel the need to kill off such an important counter-example to the maximalist narrative. However, those involved in the space in Japan recognize that not enforcing copyright law has been better for everyone:

Many experts say the Japanese anime and manga subculture has thrived due in part to a tacit understanding in society that fan fiction should be accepted to a certain extent to allow room for amateurs to shine.

The recent Comic Market is one indication of the level of demand for dojinshi and other works of fan fiction. A total of 520,000 visitors attended--many of them teenagers or in their 20s--while about 35,000 groups sold dojinshi and other related goods.

Some are even worried that it might extend to cracking down on cosplay:

“The creation of derivative works has helped the expansion of the market (for anime and manga), a rich gray zone built based on a gentleman’s agreement between original artists and amateur creators,” [lawyer Kansaku Fukui] said.

If the copyright law was enforced without a formal complaint, not only dojinshi, but also parodied creations of movies and literature, could be subject to a crackdown, Fukui said.

He added that even cosplayers could be a target, especially if their costumes were elaborately made and if a video of the costume play was uploaded on the Internet.

“If people think about the possibility of coming under questioning, they might cower,” he said.

I would imagine that the various negotiators of the TPP probably aren't all that familiar with anime, manga or cosplay -- but pissing off fans of all three probably isn't particularly wise.

Re: Ah, nuts!

Everything at comiket is basically infringement.

Fan-fiction is presumed to be derivative work, which means you could be dragged into court and have to justify fair use. Visual fan-work probably has a heavier burden to meet than written fan-work, but even then it's hard to see how most of it wouldn't satisfy the fair use factors. No negative impacts on market (except maybe direct novelizations), etc.

Laws are for people, not the way around

mutually beneficial (even if technically infringing) setup

Isn't this the prime indicator of an outdated/unnecessary law? Every side of the setup ignores the law, because it's hampering them. Then why the F*** are we having this law in the first place?Laws are not born to exist out of context from some god-emperor's mind (or, at least it shouldn't), they should reflect and formalize the accepted behavioral rules of our society. If accepted behavior changes, the laws must(should) follow suite.

Re: Laws are for people, not the way around

the politician's thinking nowadays are those of the medieval era... where their words ARE LAW.

And the people MUST abide them by the letter....

there's no gray part on their judgement.... just white and black....

And these guys will be making nearly everyone extremely pissed off that tall the fans WILL further dive into piracy to get the good stuff that the additional red tapes will block to squeeze more money out of it...

Re: Re: Re: Re: Laws are for people, not the way around

Re: Laws are for people, not the way around

Not necessarily. The same copyright laws prevent someone from making an anime or spin off manga without permission. For example, a One Piece spin off would probably sell quite well. The copyright laws in effect prevent someone from cashing in like that, making them still useful.

Not using the law to crack down on amateurs releasing the odd infringing work a few times a year like they were a commercial scale infringer is just being sane in the exercise of the law.

Re: Re: Laws are for people, not the way around

Re: Re: Re: Laws are for people, not the way around

This is not so much selective enforcement of a law, as it is selective exercise of the author's rights.

The big concern which Mike's article fails to convey is that under current copyright law in Japan, the owner of a work has to make a formal complaint before any prosecution for a violation of their copyright can take place.

In short, the authors have to opt to exercise their rights for anything to happen. That they routinely do not exercise their rights for a subset of conditions is a poor argument for the wholesale removal of those rights.

The key words there being "wholesale removal". You can make a pretty good argument that this behavior is grounds for narrowing the scope of copyright by adding exceptions for the things the authors are routinely overlooking.

That's not what Anonymous Howard is suggestion. He's suggesting that the authors not exercising their rights in this one subset of circumstances justifies wholesale abolishment of all of the author's rights.

Re: Re: Re: Re: Laws are for people, not the way around

The big concern which Mike's article fails to convey is that under current copyright law in Japan, the owner of a work has to make a formal complaint before any prosecution for a violation of their copyright can take place.

This is what exactly would change if TPP in its current form would came to be.

Also, you argued - imho mistakenly - that commercial spin-offs are bad. You seem to think that building on someones work (spin-off and fan art) and *gasp* making money off your _own_work_ is somehow takes out money of the original artist's pocket, which is in many case the opposite.

That's not what Anonymous Howard is suggestion. He's suggesting that the authors not exercising their rights in this one subset of circumstances justifies wholesale abolishment of all of the author's rights.

Re: Re: Re: Re: Re: Laws are for people, not the way around

Also, you argued - imho mistakenly - that commercial spin-offs are bad. You seem to think that building on someones work (spin-off and fan art) and *gasp* making money off your _own_work_ is somehow takes out money of the original artist's pocket, which is in many case the opposite.

I never said anything about fan art. Nor that commercial spin offs were themselves bad. I said that making a spin-off without permission was not a desirable thing.

You're erecting strawmans. Let me quote myself

Let me quote you. "Isn't this the prime indicator of an outdated/unnecessary law?

It's all one law. If you're trying to argue that it's unnecessary, then you're arguing that the whole of Japan's copyright law is unnecessary and should be removed. If that is not your intent, you need to be more precise. Especially as your further comments indicate that you do oppose the general requirement for commercials licenses, not just the prospect of it being applied to small time fans that happen to be selling knickknacks a couple times a year.

Re: Re: Re: Re: Re: Re: Laws are for people, not the way around

First, you contradict yourself:"I never said anything about fan art. Nor that commercial spin offs were themselves bad. I said that making a spin-off without permission was not a desirable thing. "

"It's all one law. "

Then you don't address my answer, which were about spin-offs AND fan art.

". If you're trying to argue that it's unnecessary, then you're arguing that the whole of Japan's copyright law is unnecessary and should be removed. If that is not your intent, you need to be more precise. "

No, you simply need to look up the interpretation of "/", which is "OR", and voila! Everything make sense.

You're being difficult on purpose, dim or trolling. In either case, F U.

Re: Re: Laws are for people, not the way around

Do you really want to see a world where the big publishers, labels and studios control all the art that you can access. That is where the maximalist approach too copyright is headed, nothing to be published without their blessing, and without them making almost all the profit.

Re: Re: Laws are for people, not the way around

The work for the show and the research required equates to a TON of work to create newer versions of people we know from history.

For example, Whitebeard and Blackbeard are actually from the mythos of Blackbeard the pirate.

Roronoa Zoro is a readaptation of the masked man that went on to help Batman be created.

And literally looking through the entire history of One Piece is looking through the entire history of the actual age of piracy.

And it's not just Eiichiro Oda's work that does this.

Rurouni Kenshin is a retelling of history of the early Meiji period.

Think about if copyright worked for only 20 years and people could readapt Batman for newer purposes...

You'd have a reinvigorated fan market that worked to create better stories outside of WB. But that can't happen so long as copyright is held in the hands of publishers who want to have control over markets until they're gone.

Re: Re: Re: Laws are for people, not the way around

The keywords are "without permission". Making a spin off without permission is no different from commercially publishing fanfiction. Or from Marvel publishing it's own Superman stories for that matter.

You can end up with numerous problems as to quality and consistency, while simultaneously diluting or destroying the original creator's ability to authorize spin offs, or do side stories himself.

Likewise, enabling any company that chooses to to create an anime adaption of a work to do so without permission removes the author's ability to profit from the adaption in any way but the most indirect means. A poor anime adaption could actually destroy their chances at increasing interest in their series as well. They run the risk of that anyways, but as it stands they at least have some control over the process. Control which Anonymous Howard proposes removing because the authors don't crack down on fans being fans.

Re: Re: Re: Re: Laws are for people, not the way around

The question is still: why is it bad? Most of today's movies, books etc are based on already existing works, and I find it distasteful to grant privileges on who can make things out of them.

Control which Anonymous Howard proposes removing because the authors don't crack down on fans being fans.

Again dat strawman. I said if authors don't crack down on fans, then the law should reflect this attitude toward fans. If laws would reflect the socially acceptable behavior, then there would be no need to selectively enforce it (formal complaint/no complaint).

I don't think any fan art creator like the gun at his head that this maybe-maybenot copyright bullshit presents. They should know when they break a law, and it should not depend on someone else making a complaint about it.

This is like arguing "the falling tree is only makes sound if someone hears it"

Re: Re: Re: Re: Re: Laws are for people, not the way around

The question is still: why is it bad? Most of today's movies, books etc are based on already existing works, and I find it distasteful to grant privileges on who can make things out of them.

So, in other words, you think that authors should be granted no privileges to their work, for any length of time?

As to why it's bad, you have several reasons. For starters, you're basically declaring it open season for the likes of Disney. Remember that article a few months ago about Disney profiting on the public domain? It'd be like that, only instead of the public domain being decades old classics, it'd be whatever work Disney thought showed potential at the moment. The author of the original work would be left attempting to ride Disney's coat trails, and compete with the novelizations that Disney would put out. Not exactly great circumstances for the original author.

That assumes that Disney or whoever is successful. Suppose Disney or whoever grabbed first made a flop? Now other people aren't as interested as it's seen as a failure, and the author has a harder time getting people interested in trying a new adaption. Yes authors run this risk anytime they agree to an adaption, but that they have to give their ok means they get some paid compensation for the risk, and have some control over who makes the adaption.

And of course for publishing fanfiction, it would be pretty easy for the original author's work to be drowned out. It would not be that difficult to end up with a franchise like Star Trek or Forgotten Realm. Only with the original author's work surrounded by a sea of crap with the same name as less scrupulous publishers print anything as a cash grab. Or the story ends up attracting a bunch of stories with a different theme, and the original work ends up outright rejected by the fans of the franchise. Either way leaves the original author to start over from scratch rather than be able to freely build on their universe. While the second scenario can work out well from the public's standpoint, neither one works out well from the author's standpoint. You're also relying much more heavily on the publishers to be quality control, instead of the original author being able to exert some quality control.

Again dat strawman. I said if authors don't crack down on fans, then the law should reflect this attitude toward fans. If laws would reflect the socially acceptable behavior, then there would be no need to selectively enforce it (formal complaint/no complaint).

Again, you called the law unnecessary which implies that it should be removed when you're talking about changing things. Even assuming that I'm wrong about the scope of what you're arguing, you are still in essence saying 'The authors are seldom exercising their right to crack down on their fans, and therefore that right should be removed.'

I don't think any fan art creator like the gun at his head that this maybe-maybenot copyright bullshit presents. They should know when they break a law, and it should not depend on someone else making a complaint about it.

I doubt most of them think about it at all, or feel like there's a gun pointed at their head. Furthermore, short of setting an arbitrary cutoff, or removing the author's right to control adaptions of their work altogether, there will always be cases where whether or not something is a copyright violation comes down to "Did the author approve of this or not? Does the author want this taken down or not?"

Re: Re: Re: Laws are for people, not the way around

Again, this is not the law being applied unequally. The law grants the authors certain rights, as well as discretion in exercising those rights. The authors simply opt to not exercise their rights when it comes to doujin. This is no different from the way that most authors don't exercise their rights when it comes to fan fiction.

That they see no harm in unprofitable fan works, and thus don't crack down on the fans like they are technically allowed to do; does not justify removal of all of their rights that do exercise.

Or to put it another way, that the authors routinely grant a defacto free license for non-commercial use does not justify removing their ability to require a paid license for commercial use.

Re: Laws are for people, not the way around

"Then why the F*** are we having this law in the first place?"

Because the law isn't written for those people nor for consumers. It's written for those corporations that refuse to adapt and wish to have the world conform to their ideals, not change themselves to adapt to new marketplace realities.

Re: Re: Laws are for people, not the way around

If the makers of the content are not reporting on possible copyright infringement who will? Is the government going to start reading every manga and going to every comicon? I don't understand how this would work.

Re:

While they technically are unlikely to have a standing normally, combine the forced enforcement of trade agreements with application of those wretched ISDS provisions and you have a nightmare waiting to happen.

The trade agreements are the "handwavium" to make this constellation possible to begin with.

check out, people, who is going to benefit most from TPP, TTIP and any other 'partnership'. check how close each one of these 'partnerships' is getting a certain industry to it's goal of being able to control the use of the Internet for it's own needs. if there isn't some serious obstacles put up, the 'net' wont be worth a thing to the people or be able to be used in it's intended ways

illegal already

What is missing in this story is that fan fiction is already a violation of copyright, but the copyright holder tolerates it and always retains the right to tolerate it.

Attempting to enforce copyright when the rights holder is supporting the infringing party won't work out very well, so all of this reads mostly like a scare tactic to try to get the manga / anime types upset. Their legal position doesn't really change, does it?

Re: illegal already

However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening.

Read the quote above from the article, it states that the work is technically infringing, and also that pressure will be applied to the copyright holders to take action against the fans. The maximalists do not like any exceptions, legal or not, and publishers ignoring infringement via derivative works undermines their position.

Re: illegal already

Seems like there'd be constitutional issues with that. Due process issues revolving around the government's seizure of private rights.

The notion that private companies would have to bring copyright infringement claims is absurd. And impossible. It isn't like the DOJ has the time to review where companies have been studiously monitoring for infringement.

Worst case scenario, the TPP passes and content creators create a new derivative work licensing scheme philosophically parallel to Creative Commons, but replicating the status quo, except people wouldn't have to worry about bring dragged into court to justify fair-use.

Re: illegal already

It does change the legal position of the manga/anime types. Instead of dealing with flexible and forgiving creators, they'd be dealing with unflexible and unforgiving bureaucracy with no involvement on the part of the original creator required.

Furthermore, while I'm not sure how the situation has changed in the last few years, one of the concerns is that TPP would result in the addition of statutory damages being added to the law:

Re: illegal already

Except that very often so, copyright enforcement organizations have no qualms about shutting down what they assume is infringement, with or without representation by the rightsholder or even if the rightsholder is affiliated with them. But you wouldn't care, because you assume that anime and manga are only consumed by basement-dwelling teenagers.

Re: illegal already

Re: illegal already

Fair use applies where they acknowledge the original creator and create a genuinely derivative piece of work. Authors generally let the infringement elements slide because hardcore FF writers wanting to learn more about their "fandom's" "canon" buy source works, i.e. films and books, in order to more faithfully recreate the world (or "sandbox") in which the characters they're writing about "live" in.

Basically, Fan Fiction drives sales to people wanting to improve their knowledge of the subject matter and people who take an interest in it after reading the stories or viewing the artwork.

Actually, unless you're a really popular artist like Nishimata Aoi you're unlikely to make any profit at all, quite the reverse in fact. Generally it's done out of sheer love of the original work and the culture of sharing what you love.

In general, the costs of producing a doujin are higher than what little you'll make back selling it at Comiket. As such, profit never really enters into the equation since you're more likely to make a loss on your work anyway.

I don't think TPP will be completed because Japan wants to protect its' agricultural products but all TPP countries want Japan's agricultural products open, eliminating all tariffs. And don't forget, Senate Majority Leader Harry Reid has vowed to block a "fast-track" bill. But even if Obama doesn't get "fast-track", the TPP can still go into force by ratification of two member countries.

Creators are fans themselves

The industry knows that not only does the fan fiction support their business but many professional creators have their roots in these conventions. There are actually many professionals that create fan fiction. Perhaps Library Wars is not fiction after all.

Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it.

The world has gone made. In their drive to expand copyright, maximalists want to limit the rights of copyright holders. Copyright holders are not allowed to be okay with fan fiction or piracy of their own work? What's next, outlawing Creative Commons licenses? Copyright maximalism has become an ouroboros: it's eating itself. This is insane.